Dandan (Migration)

[2021] AATA 3779

Dandan (Migration) [2021] AATA 3779 (10 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Amne Dandan

VISA APPLICANTS:  Mr Abdul Aziz Dandan
Mrs Zeina El Abdallah

CASE NUMBER:  1931963

HOME AFFAIRS REFERENCE(S):          BCC2019/4303161

MEMBER:Stephen Witts

DATE:10 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants Visitor (Class FA) visas.

Statement made on 10 September 2021 at 11:41am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – previous compliant visits – economic and security situation in Lebanon – balance of family in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.611, 600.612

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 September 2019 to refuse to grant the visa applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 27 August 2019. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas seeking to satisfy the primary criteria in the Sponsored Family stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visas, on the basis that the visa applicants did not meet cl 600.211 because the delegate was not satisfied that the visa applicants genuinely intend to stay in Australia temporarily for the purpose for which the visa is granted.

5. The review applicant, Mrs Amne Dandan, appeared before the Tribunal on 9 September 2021 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the visa applicant, Mr Abdul Dandan, the review applicant’s father.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether cl 600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

10. In the present case, the visa applicants seek the visas for the purposes of visiting family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

11. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)). There is no evidence before the Tribunal that any of the applicants have breached any substantive visa conditions.

12. The Tribunal must also consider if appropriate whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl 600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl 600.612):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

    ·8531 – must not remain in Australia after end of permitted stay.

13. According to the delegate’s decision record dated 19 September 2019 provided to Tribunal by the applicants, the delegate was not satisfied that the applicants genuinely intend to stay in Australia temporarily for the purpose for which the visa is granted.

14. According to the delegate it assessed the visa applicants’ personal circumstances such as the presence of family members remaining in Lebanon. However, it also considered the economic, security and political issues of the applicant’s home country and was not satisfied that there were sufficient ties to Lebanon to induce the applicants to leave Australia at the end of the proposed visit. It also considered the employment status of the primary visa applicant and was not satisfied that the applicants intend to return home. It was noted by the delegate that the visa applicants, the review applicant’s father and his wife, had previously travelled to Australia and departed with the validity of the visa period but gave this previous travel limited weight due to the recent deterioration of the country situation in Lebanon.

15. The Tribunal has considered all the material before it including evidence provided prior to the hearing evidence given at hearing.

16. At the hearing the visa applicant stated that he was 56 years old and that he was living in Lebanon with his wife and a son aged 23. He stated that he has three other children, two girls and a boy all who live in Australia and that they now have seven grandchildren between them all living in Australia. He stated that he has 11 siblings (or half siblings) living in Australia and six living in Lebanon. He stated that he works in a shop and makes and installs curtains where he has been for 4 ½ years and that prior to this he was a farmer. He stated that he is living in a house that he owns with his wife and son, and that he has visited Australia on 10 occasions most recently in 2009 to attend a wedding. He stated that he has never breached or overstayed on any of his visas and that in 1998 he asked for an extension of his visa and that that extension was granted. He stated that he would like to visit Australia again to see family to visit them rather than they come to Lebanon. He stated that he acknowledged that his home country is suffering but that he still has his life in Lebanon and that his son there is now engaged.

17. The review applicant stated that she first came to Australia in 2013 on a spousal visa and that she is now an Australian citizen. She stated that she has two girls and a boy aged seven, six, and two. She stated that her father, the visa applicant, has his own life in Lebanon and that he does not have an intention to stay long-term.

18. The Tribunal has considered this evidence very carefully and notes in particular that the visa applicants have visited Australia on numerous occasions in the past without, it has been asserted, any visa breaches occurring. However, the Tribunal after careful consideration finds that this is outweighed by other factors including the recent significant deterioration of the economic, social, and security situation in Lebanon noted below, and also the primary visa applicant’s current circumstances including that he is now working in a shop making curtains and that he has been there now for 4 ½ years and was not able to provide any other evidence in regard to any financial or job or work commitments other than he has stated he does own the house that he and his wife live in. It is also noted by the Tribunal that the visa applicants now have seven grandchildren living in Australia and that the next generation of the family is now becoming quite a large one in Australia.

19. As stated, the Tribunal has also considered the recent country information reports from the Department of Foreign Affairs and Trade, and notes that the security, political, and economic situation in Lebanon at the present time is particularly bad. The Tribunal notes the recent humanitarian crisis and how it has evolved for the worse over the last few years. The Tribunal had a discussion with the visa applicant about this noting that his last previous visit was in 2009. As noted above the visa applicant did acknowledge the suffering that was now occurring in his home country. As noted the Tribunal has considered this matter very carefully and finds that the situation back in the visa applicant’s home country is very deleterious and that this does lend weight to the contention that the applicants do not genuinely intend to visit Australia temporarily for the purpose for which the visa is granted.

20. Having taken all these factors into consideration the Tribunal finds that should the visa applicants now be successful in coming here as visitors taking into contention the changed circumstances both in their home country as above and also the changing family circumstances in Australia that the visa applicants may seek to stay here in some form on a long-term basis and that they do not genuinely intend to stay in Australia temporarily.

21. The Tribunal has also considered all other relevant matters (cl 600.211(c)).

22. For the above reasons the Tribunal is not satisfied that the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl 600.211 are not met.

    DECISION

23. The Tribunal affirms the decision not to grant the visa applicants Visitor (Class FA) visas.

    Stephen Witts
    Member